Josh Yokela v. Governor, State of New Hampshire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0094, Josh Yokela v. Governor, State of
New Hampshire, the court on June 5, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, Josh Yokela, appeals an order of the Superior
Court (Kissinger, J.), dismissing, for failure to state a claim upon which relief
may be granted, his complaint against the Governor of the State of New
Hampshire in which he seeks to enjoin and declare unconstitutional a June
2022 executive order. The plaintiff argues that the Governor lacked authority
to issue the executive order, and that the executive order violates the
separation of powers doctrine and certain provisions of RSA chapter 237. We
affirm.

In reviewing the dismissal of the plaintiff’s complaint, we determine
whether the factual allegations in the complaint are reasonably susceptible of a
construction that would permit recovery. See Boyle v. Dwyer, 172 N.H. 548,
553 (2019). We assume the well-pleaded factual allegations in the complaint to
be true and construe all reasonable inferences from them in the light most
favorable to the plaintiff. See id. We also consider documents attached to the
complaint, documents the authenticity of which the parties do not dispute,
official public records, and documents sufficiently referred to in the complaint.
See id. We do not, however, assume that statements in the complaint that are
merely conclusions of law are true. See id. We then engage in a threshold
inquiry that tests the well-pleaded facts against the applicable law, and if the
allegations do not constitute a basis for legal relief, we will uphold the
dismissal of the complaint. See id.

Under the New Hampshire Constitution, the Governor is the “supreme
executive magistrate,” in whom “[t]he executive power of the state is vested,”
and who is tasked with “the faithful execution of” New Hampshire law. N.H.
CONST. pt. II, art. 41. We generally presume that the Governor was acting
within the scope of his or her constitutional authority when issuing an
executive order unless it is demonstrated inescapably that the Governor
exceeded his or her constitutional authority. See Opinion of the Justices, 118
N.H. 582, 584, 589 (1978). The Separation of Powers Clause “is violated only
when one branch [of government] usurps an essential power of another.” N.H.
Health Care Assoc. v. Governor, 161 N.H. 378, 386 (2011) (quotation omitted).
 The challenged executive order directs toll booth attendants to allow any
funeral procession to pass through the cash toll lanes on New Hampshire’s
turnpikes without collecting a toll from funeral goers. The plaintiff, a member
of the New Hampshire legislature, filed the present action asserting that the
legislature had recently rejected legislation that would have exempted
participants in funeral processions to the veterans cemetery in Boscawen from
paying tolls, and seeking a declaratory judgment that the executive order
violates the separation of powers doctrine and various statutes and provisions
of the New Hampshire Constitution, and an injunction against its enforcement.
In dismissing the case, the trial court observed, in part, that RSA 237:5, II(d)
(2009) specifically authorizes the commissioner of the Department of
Transportation (DOT) to “[p]ermit toll free use of certain sections of the [New
Hampshire turnpike] system if it is for the public good.”

The commissioner of the DOT is an officer appointed by the Governor
with the consent of the Executive Council, RSA 21-L:3, I (2020), who is tasked
with “[r]epresent[ing] the public interest in the administration of the functions
of the” DOT, and is “responsible to the governor, the general court, and the
public for such administration,” RSA 21-L:4, I (2020). The commissioner is
specifically charged with “operat[ing] and maintaining the New Hampshire
turnpike system,” and in so doing, is authorized to “[p]ermit toll free use of
certain sections of the system if it is for the public good.” RSA 237:5, II(d); see
also RSA 237:17, IV (Supp. 2023), :34, IV (2009) (providing same authority with
respect to the commissioner’s operation and maintenance of the Eastern New
Hampshire Turnpike and Central New Hampshire Turnpike). Here, the
executive order, in effect, directed the commissioner to exercise the authority
under RSA 237:5, II(d) to allow funeral goers temporary toll-free use of sections
of the turnpike system for the public good. We conclude that the Governor did
not usurp an essential power of the legislature or inescapably exceed his
constitutional authority by issuing the executive order. See N.H. Health Care
Assoc., 161 N.H. at 386; Opinion of the Justices, 118 N.H. at 584, 589. Nor
are we persuaded that the executive order violated any other provision of law.

Affirmed.

Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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